Saturday, December 17, 2005

Land of the Free?

See Justice O'Connor's opinion in Hamdi for why I now believe the NSA wiretapping program to be a fundamental incident of war waging power of the Commander-in-Chief. In so doing, I fully acknowledge that the rest of this post "flip flops." Read ahead on the caveat that this was authored by a somewhat less informed individual than the one typing this today. (4.10.06) - sls1l

"Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance...A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur."
- United States v. United States District Court, 407 U.S. 297 (1972)

There are civil liberties and there are civil liberties.

Staying completely true to the tenets of the Bill of Rights is a hard thing to do. If we are going to live in a land of free speech, radical Muslims have the go-ahead to spew perverted 'Holy War' dogma. If we are going to create a society with the right to assemble, municipalities must certify their right to associate and celebrate their culture of oppression.

If we are going to be secure in our person and effects, Big Brother simply can't be watching us or them without judicial checks and balances.

The true test of poker player is how he plays his hands when he's on a streak of cold cards. I'd argue that a society's commitment to freedom is measured at the time when the temptation to suspend those liberties is greatest.

That the President authorized domestic espionage on citizens without probable cause is all at once depressing, inappropriate, and contrary to every norm of criminal investigation in this country. (On a related note, I find it as offensive that this story was strategically released after months of wait to coincide with the renewal of the PATRIOT Act)

The article reports that 'Mr. Bush delivered a live weekly radio address from the White House in which he defended his action as "fully consistent with my constitutional responsibilities and authorities."'

Really? See, because, I'm left wondering why legislators from both sides of the aisle are as shocked and insulted as I am. Talk of balancing interests and greater good are legally unpersuasive. Laws circumventing personal privacy have always received the most ardent scrutiny from the courts. If you have "nothing to hide," as some of the myopic critics as responded, I applaud you for being a model citizen. But, for me, it comes down to what kind of society we seek to live in. Because, in general, I don't think the regimes that have subjected their citizens to unwarranted oversight in their personal lives have been received too favorably in the hindsight of history.


At 8:49 AM, Blogger CM said...

Have you taken Crim?

I agree with you on the domestic espionage, but I was shocked at how far the Rehnquist court went in allowing invasions of privacy.

At 9:31 AM, Blogger NYC Guy said...

Yeah, I had Crim this fall. I found it far and away my most interesting course.

You are right, though. I think Terry v. Ohio is the example that stands out the most to me in reducing 'probable cause' to 'reasonable suspicion.' What makes Bush's action so questionable is that the Court held that such suspicion had to be based on specific and articulable facts. I wonder if the surveillance conducted on you, me, and the American people meets even that burden.

The problem is, we'll never know.


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